Smt. Yamunabai Laxman Gaikwad and Another vs V.M. Vanmali and Another

B.N. Naik, J.—This is the Petition filed by Obstructionist against whom Obstructionist Notice No. 202 of 1976 taken out by the Respondent-Decree Holder was made absolute by the trial Court and it was confirmed by the Division Bench of the Small Causes Court.

Few facts which are relevant for the purpose of this Petition are that the Respondent-landlord had filed suit against the original Defendant, Respondent No. 2 herein for possession on the ground of sub-letting and profiteering. An exparte decree was passed on 12th February, 1976. When the Respondent-landlord sought to execute this decree, obstruction was raised by the present petitioners and they claimed that they are in exclusive occupation of one room tenement since 1968 and thus they are protected licensee and notwithstanding the fact that they had taken out an application for joining them as party in earlier suit, that application was rejected. It appears, after that obstruction report was submitted by bailiff that Petitioners are residing alongwith the Original Defendant No. 1.

Since an obstruction was raised, the Respondent No. 1-landlord took out Obstructionist Notice No. 202 of 1976 and pointed out that the present obstructionists had no right, title and interest in the property, they happened to be relations of original defendant and without any justifiable cause they are raising obstruction and hence obstruction should be removed.

The present Petitioners filed detailed reply in which they tried to contend that they are in exclusive possession since 1968 and they were paying compensation to original defendant who happened to be their relation and they were paying compensation at the rate of Rs. 15 per month and since they happen to be in possession since 1968 they are protected licensees and hence decree should not be permitted to be executed against them. They also brought to the notice of the court that earlier before passing of decree on 24th March, 1975, an application was filed for joining them as party defendant but that application was objected to by the decree-holder and the application was rejected.

The evidence was led in this matter and on behalf of the Petitioners one Laxman Ganpat Gaikwad i.e. Petitioner No. 2 herein was examined. His evidence was that he was in exclusive possession of one room tenement as licensee since 1968, even his last two children who were aged about 12 and 10 years, were born in the suit premises. The evidence was given on 10th February, 1980. He produced the birth certificates of his children which were marked as Exhibit 2 collectively, he also produced electricity bills from. 1968 to 1976 at Exhibit 3 collectively and showed that he has paid the bills. He also produced the Ration card. Notwithstanding such production of documentary evidence on which there was serious challenge, the trial Court which heard the Obstructionist Notice did not refer to any of these documents and accepted the report submitted by the bailiff that the Petitioners were in joint possession alongwith the original Defendant No. 1 and on this basis the obstructionist notice was made absolute on the ground that the Petitioners failed to establish their case that they were in occupation since 1968 and they were protected licensees.

Being aggrieved and dissatisfied by the aforesaid order of making rule absolute in obstructionist notice on 8th February, 1980 the present Petitioner filed Appeal No. 151 of 1980 and the Appellate Court confirmed the finding recorded by the Court below.

Respondent No. 1, though served, remained absent and 2nd Respondent is dead. Shri Konkar, the learned Counsel appearing for the Petitioners, contended that both the Courts below totally ignored the documentary evidence which was produced by the Petitioner No. 2 which was not really challenged and if the documentary evidence like electricity bills, birth extract and Ration card is taken into consideration coupled with the positive case of the plaintiff made out in the plaint of 1974 regarding subletting and profiteering, it must be held that the Petitioners proved their possession since 1968 and they were unlawful sub-tenants and Shri Konkar points out that in any event in view of Maharashtra Act 18 of 1987, unlawful sub-tenancies in existence prior to 1st February, 1973 are legalised, and amendment is retrospective in operation as has been held by the decision of this Court. I am inclined to accept the submission of Shri Konkar and hold that Petitioners have positively established by evidence that they were in exclusive possession and occupation of one room tenement since 1968 and they were sub-tenants is the case made out by Respondent-decree-holder himself in suit which he has filed against Original Defendant No. 1 and if this unlawful sub-tenancy is in existence from prior to 1st February, 1973, then surely the Maharashtra Act 18 of 1987 comes to the rescue of the present Petitioners and it will have to be held that their unlawful sub-tenancy is legalised. In view of this I allow this Petition and make the Rule absolute. However, since Respondents are not present though duly served, there would be no order as to costs of this Petition.